Scientists: Rules on leaking tanks worrisome

When Anthony Rodrigo bought a Huntington Beach day care in 2003, he knew that the carwash next door was under scrutiny because gasoline had leaked from an underground tank into the soil below.

But Rodrigo wasn't too worried. Local health care agency officials told him the state had plans to clean up the site – and were already doing so.

“I went to the fire department and the health care agency and checked everything, and they were doing the cleaning up. They were active, they were cleaning it up,” Rodrigo said.

Ten years later, the contamination case at the carwash remains open. Geologists who had promised to test for contamination under his land never showed up. And now he's been notified that the state water board is considering closing the case under a new “low threat” closure policy – no more cleanup, no monitoring, no sampling.

“I guess I took it for granted they would take the necessary steps to do the cleanup,” Rodrigo said.

Since 1984 more than 44,000 leaking underground petroleum storage tank leaks have been documented in California, including 3,000 in Orange County. Nationwide, the U.S. Environmental Protection Agency has documented 510,000 such leaks.

Scientists say in at least a fifth of those cases the leaks were made worse by methyl tertiary butyl ether, a fuel oxygenate added to gasoline to promote cleaner burning. Once MTBE leaks into the soil and groundwater, the chemical can make water taste like turpentine and leave behind traces and vapors that could pose cancer and health risks for years. Another chemical, tertiary butyl alcohol, or TBA, which can appear when MTBE breaks down, has caused cancer in animal studies.

Although thousands of sites have been cleaned up in the past 30 years, records show that some 6,070 cases remain open in California, including 485 in Orange County. Complicating the problem, a fee that funds the state's cleanup efforts is to expire on Jan. 1, 2016.

Since August 2012, state and local regulators have closed more than 550 leak cases after finding they met the criteria in a new “low threat” closure policy that gives regulators the power to shut the books on higher levels of contaminants than ever before. There are more closures on the way: Records show regulators have determined more than 1,700 other cases are eligible for closure under the new policy.

The “low threat” policy establishes a complex set of criteria that allow closure of cases where contamination still exists, but is considered stable and unlikely to reach groundwater supplies.

Water districts and regulators in highly pumped watersheds such as north Orange County, which rely heavily on groundwater, have criticized the way the state is closing cases under the policy – sometimes over the objections of local agencies.

Concerned local regulators say the new standards allow gas station owners and oil companies to walk away from contaminated sites without documenting how far and deep these chemicals have spread from the original tanks that leaked, sometimes decades ago.

Ken Williams, a senior engineering geologist who manages the underground tanks program for the state Regional Water Quality Control Board in Riverside, an office that covers portions of Orange County, said the new standards could threaten groundwater supplies.

“They're forcing me to close sites that I think are partially cleaned up,” Williams said. “They don't even quantify what they're leaving in place, so how do they know what they're tolerating?”

State officials say the new policy is justified by science that shows that natural breakdown processes of the chemicals at the leak sites have reduced the threat to humans. They say the state needs to focus on the worst underground tank leaks. There's also a groundwater threat posed by more dangerous pollution sites, such as dry cleaners and industrial sites contaminated with chlorinated solvents.

“There's a lot of money that is being spent on low-threat sites. The board wants to stop spending money on the low-threat sites so that we can start spending money on the high-threat sites,” said Kevin Graves, chief of the underground storage tank site cleanup program at the California State Water Resources Control Board, Division of Water Quality.

While some critics of the low-threat policy are sympathetic to the state's point of view, they express concern that the state is relying too much on the belief that the fuel components will be eaten by microscopic bugs underground.

Scientists say what and how much the bugs eat depends on many variables, including the amount of oxygen, nitrate, and sulfate available in the groundwater, and can vary considerably from site to site.Without those components, it's unclear how certain chemicals, such as TBA, continue to degrade.

“I think you can say that the science on that is still out … they're still working on it,” said John Wilson, a researcher with the Environmental Protection Agency's groundwater and ecosystems restoration office who studies how contaminants degrade underground.

CORROSIVE ENVIRONMENT

Environmental regulators determined in the early 1980s that the single-walled steel tanks commonly used for underground fuel storage were inadequate.

“Putting metal tanks in such a corrosive environment was not such a good idea,” said Timothy Nelligan, an environmental consultant in Orange County who has worked on many underground storage tank cleanups.

Fearing the leaks could damage precious groundwater resources, the source of drinking water for nearly half of all Americans, Congress required the EPA to develop a program to detect and clean up leaks from underground storage tank systems.

The EPA says that there's not enough data to establish whether MTBE or TBA cause cancer at low levels in drinking water. But citing an increased cancer risk in animal studies, California regulators have set a maximum level for MTBE in drinking water at 13 parts per billion. Studies also show health risks from vapors that travel through soil and escape into the air in houses and businesses. In 1999, the state was the first in the nation to prohibit the use of MTBE in fuel, with a complete phaseout effective by 2004.

California adopted its own regulations in 1985 requiring owners to demonstrate, upon closure of their case, that contamination of the soil or groundwater had been reversed. “This is especially important since groundwater, as differentiated from surface waters, is very difficult if not impossible to totally clean up once contaminated,” the state water board wrote in 1985.

In 1991 the state began collecting a fee of six-tenths of a cent per gallon of motor fuel and other petroleum products stored in the state, a fee that grew to today's rate of 2 cents per gallon. In total that has raised more than $4.3 billion, with the fund paying out approximately $3.5 billion in cleanup claims. The fund reimburses up to $1.5 million for cleanup at qualifying sites where an underground storage tank leaked.

In Orange County, the district attorney won multimillion-dollar settlements between 2002 and 2005 against Shell Oil Co., Arco and Thrifty Oil totaling more than $24 million, said Joe D'Agostino, a senior assistant district attorney who led a team of lawyers to prosecute these cases.

“Our major concern was that the MTBE plumes could migrate into the aquifer and/or the wells, and we did not think that the oil companies were sufficiently, aggressively cleaning up those plumes the way that we wanted them to,” D'Agostino said.

But the cleanups dragged on – a 2012 EPA report analyzing state cleanup data found the average age of contamination cases statewide was 17 years.

The state prioritizes payments for cleanups based on the type of claimant asking for money: Individuals and small businesses go first, large corporations go last. Major oil companies in many cases have waited for over a decade for payouts from the fund. State officials estimate the fund still owes billions, mostly to gasoline companies, for past cleanup work that will likely never be fully reimbursed.

With more than 4,700 claims awaiting reimbursement from the fund, the amount of money owed from the fund could top $3 billion, according to a report to the Legislature published in August. State officials said it's hard to estimate how much will be left in the fund if and when it expires, but the state's latest annual report on the fund shows a $70 million backlog in payments as of June.

A NEW POLICY

After years of watching cases drag on, the state determined that something needed to be done to speed up the process. In May 2012, the state water control board approved the low-threat closure policy, which establishes a set of criteria justifying the closure of cases with residual petroleum that “pose a low threat to human health, safety or the environment.”

The policy lays out eight general and three specific criteria, dictating how long, how much and where a plume of contamination that's “stable or decreasing in areal extent” can be underground in relation to water supply wells, soil under buildings, or a body of water.

One big change in the new policy is the assertion that naturally occurring chemical and biological processes will cause the MTBE and benzene to dissipate and disappear before any groundwater they reach is needed for use as drinking water. Before, state cleanup rules authorized regulators to require a “complete cleanup of all waste discharged and restoration of affected water to background conditions.”

That new language means a case can be closed with measurable contamination levels with the “recognition that bio is doing the job,” Graves said.

Some regulators argue that change in the policy ends an unsustainable draw on state resources.

“In my opinion, a lot of money's been wasted. And regulators are guilty of it,” said Craig Carlisle, senior engineering geologist for the San Diego Regional Water Quality Control Board.

“If it's somewhere where it doesn't get to a person, a fish, a bird, a human being, if there's no way it physically or chemically gets to a receptor ... well, what problem is that toxin?” Carlisle said. “The implementation of the low threat policy is about reasonableness. It can cost millions, tens of millions to clean up a small groundwater plume down to zero. For what benefit?”

But in parts of the state that rely more heavily on underground aquifers for drinking water, recent closures of contamination cases have made regulators and water districts nervous.

“If the groundwater is moving through the sediment that contains the residual gas from the spill, if it's moving very fast, then you have a chance that it is going to move into a well,” said Wilson, the EPA scientist.

Williams, the water agency geologist, said that areas like the Santa Ana River Basin are geologically more sensitive to contamination than areas like San Diego. He thinks the policy should take that into account when regulators are considering closing cases.

“Should we tolerate contamination until we can't tolerate it anymore because it's already gotten to the wells and it's irretractable?” Williams said.

The Orange County Water District, which serves about 2 million residents in Orange County, has also questioned the state's low-threat closure policy.

The district has been waging a lawsuit against more than a dozen gas companies including Exxon Mobil Corp., Shell Oil Co. and Chevron USA Inc. since 2003 for contamination of the water supply with MTBE and TBA. To date, the district has spent approximately $5 million in investigative costs and $5.7 million in litigation costs related to the suit, said Eleanor Torres, an Orange County Water District spokeswoman.

The suit is currently in New York federal court alongside more than a hundred other cases concerning MTBE contamination from water districts, as well as city and state governments nationwide, said Roy Herndon, chief hydrogeologist at the Orange County Water District.

Herndon said he understands that the state is faced with financial pressures to end an unsustainable draw on a fund with limited amounts of money to perform environmental cleanups.

“When you take away the monitoring wells from these sites, then we really are left with no information to tell where the plumes have moved. Now these sites are being closed with contamination in the groundwater presumably with the thought that they will attenuate by themselves without monitoring and that is certainly a concern to the water district,” Herndon said.

That question also irks Barbara Bekins, a research hydrologist with the U.S. Geological Survey.

“I think that the hydrologists statewide are wrestling with to what extent contamination that's shallow today will be deeper tomorrow,” Bekins said after looking at the closure policy. “Over say, 50 to 100 years, there is downward flow of water eventually.”

Bekins noted that geochemical conditions vary from place to place. If fuel contamination is in an environment where the groundwater has plenty of oxygen, its probably safe to think biodegradation is going to take care of it, she said.

“If you get into an anaerobic system (where the bugs can't consume oxygen), I think that is not such a clear assumption.”

CARWASH CLEANUP

Leonard Elbaum opened Red Carpet Carwash in April 1986, according to Huntington Beach records. Records show it was also known as the Huntington Center Carwash.

In 1988, a leak was discovered after a 7,500-gallon underground gasoline tank system failed two integrity tests. That's when a more than 25-year effort to clean up the surrounding soil and groundwater began.

To date, the case has drawn more than $1.4 million from the state's cleanup fund.

From 1993 to 1995, a vapor extraction system removed an estimated 924 gallons of gasoline from the soil under the site. Huntington Beach records show that Elbaum sold the carwash in 1995.

In 2001, the tanks were replaced with a new double-walled fiberglass tank to comply with stricter federal regulations, said Anthony Martinez, program manager with the Orange County Health Care Agency.

From 2005 to 2006 and 2009 to 2010, more than 2.2 million gallons of groundwater were pumped from the site and filtered through activated carbon vessels, according to a 2012 consultant report.

Rodrigo, the day care operator, said he was approached in 2011 by Frey Environmental Inc., which wanted to do soil testing under his day care to make sure contamination had not spread. He gave permission but says the tests were never performed.

Then, in June 2013, records show, the case cameup for a five-year review by state officials overseeing the cleanup fund. The state issued a public notice proposing closure of the case under the low-threat policy on June 27.

DISTRICTS CRY FOUL

Most case closures are done on the local level, typically through a regional water board or local county regulators.

But in some cases, either through state-level review or a petition for consideration, the state water board and Executive Director Thomas Howard are making the call to close a case after they decide it qualifies under the low-threat criteria.

Local regulators, water districts, and individual property owners have objectedin at least 29 such cases; 21 have been closed over those objections.

In one such case, the closure of a contamination case below a San Jose gas station sparked an outcry from the Santa Clara County Department of Environmental Health, the city of San Jose, and the Santa Clara Valley Water District, which all wanted more work done to accurately describe where the contaminants had spread.

The gas station, located across the street from a city park containing orchards and community gardens, was just 290 feet away from a well the city planned to use in an irrigation system, according to state records and county officials.

State regulators said the case had enough data to justify the assumption that gasoline contaminants left underground would degrade over time and didn't pose a threat.

"We actually support the low-threat closure policy in that it does provide that clear guidance as to how to get to the end of a case, but we also believe that individual data is needed to support that evaluation against the low-threat closure policy,” said Michael Balliet, hazardous materials program manager for the Santa Clara County Department of Environmental Health.

In this case, Balliet said, “essentially we just don't believe that the site is what we called properly assessed.”

George Cook, associate engineering geologist at Santa Clara Valley Water District, said the state didn't refer to the latest available data when closing the case. That data showed higher concentrations of TBA at a well close to the original leak, which suggested to him and other local regulators the plume could be moving.

“It is reckless to assume the downgradient extent of a plume is defined by a well with high contaminant concentrations,” the county environmental health department wrote in a letter objecting to the closure.

But state officials didn't respond to the comments, argued the case closure was justified by the new policy and ordered it closed on Aug. 30, with all monitoring wells destroyed.

State cleanup fund manager John Russell told the Orange County Register that the state did consider the additional data cited by local regulators prior to closure but found “it wasn't significant enough for us to change our mind and the site still met the low threat closure policy criteria.”

PROCESS CRITICISMS

In the case of the Huntington Beach carwash, now called the Russell Fischer Bella Terra Car Wash & Fast Lube, the Orange County Health Care Agency argued that the owner's consultant should perform additional soil monitoring to determine whether or not vapors were intruding onto Rodrigo's day care.

County regulators threatened in July 2012 to report the landowners to the district attorney for noncompliance because they saw no action on their request for almost nine months.

Then the case hit the state water agency's desk for a routine five-year review. State officials announced in June that they planned to close the case.

After seeing the closure proposal, Rodrigo sent a letter to the State Water Resources Control Board asking why the state hadn't mentioned a day care was nearby. Why hadn't they checked his soil after getting permission?

“Is there any danger of vapor exposure?” Rodrigo asked in his letter.

The county Health Care Agency also objected to the closure, citing the site's proximity to the day care site and a lack of recent soil data.

On Oct. 11, Lisa Babcock, fund manager for the state cleanup fund, sent a letter to the Orange County regulators announcing that the case had been withdrawn from consideration for closure, until the concerns raised by Rodrigo and the Health Care Agency were addressed.

Santa Clara Valley Water District and Santa Clara County said they still haven't gotten a response from the state on their concerns about the leak site across from community orchards.

“Once they've closed it, that's kind of a done deal,” said Cook, the water district geologist. “I'm not sure we can answer the question as to whether or not there could (still) be contamination that could affect (people).”

Similar concerns at the Alameda County Water District over the state's lack of response to comments protesting three cases closed by the state executive director led the agency to send a letter to state regulators Oct. 31 criticizing the closure process.

“ACWD firmly believes the public … would have objected vehemently to a Policy that indicated State Board staff would not be responding to any public comments received objecting to case closure,” the district said in a letter signed by Thomas Berkins, groundwater protection program coordinator for the district. “Not responding to public comments is not appropriate for a public agency.”

Graves, the state regulator, said the state plans to change its process so that local water agencies don't feel ignored.

• California has the largest number of underground fuel tank leaks in the nation, with thousands of contaminated sites still on state records after 30 years and billions of dollars in cleanups.

• State regulators last year enacted a new “low-threat” closure policy that will allow hundreds of underground leak sites to end regulatory monitoring even though residual contamination still exists underground.

• The new policy relies on the belief that remaining fuel components will naturally degrade in the soil before they leach into underground aquifers and pose a threat to humans or the environment.

• These assumptions have been questioned by many local water regulators and federal environmental scientists, who caution that natural degradation depends on the local geology.

• The state has gone over the heads of local regulators to close some cases under the low-threat policy despite protests from local scientists, water districts and nearby property owners.

- Kellie Mejdrich,

the Register

California law requires tank owners to report leaks to state water regulators.

After a leak is discovered, owners must conduct an initial investigation with the help of an environmental consultant. This involves testing the soil and groundwater for contaminants to define how deep and far the petroleum has spread underground. Owners must also remove the source of the leak (the underground storage tank) and any associated piping. The soil underneath and on the side of the pit must be sampled and the tank discarded.

Contractors use several methods to remove contaminants that have spread to underlying soil and water: Digging out the contaminated soil; vacuuming the soil; pumping and filtering the groundwater; or adding chemicals or bacteria to break down the contaminants underground.

Along with the physical cleanup, owners must monitor the soil and groundwater surrounding a leak and report contamination levels to regulators several times a year. Once the monitoring reports show low enough levels, owners can request closure of their case.